State v. Wilburn

[Cite as State v. Wilburn, 2018-Ohio-1917.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State of Ohio, :
Plaintiff-Appellee, :
No. 17AP-602
v. : (C.P.C. No. 13CR-4286)
Jonathan Wilburn, : (ACCELERATED CALENDAR)
Defendant-Appellant. :
D E C I S I O N
Rendered on May 15, 2018
On brief: Ron O'Brien, Prosecuting Attorney, and
Michael P. Walton, for appellee. Argued: Michael P.
Walton.
On brief: Family First Law Offices, and Mark C. Eppley, for
appellant. Argued: Mark C. Eppley.
APPEAL from the Franklin County Court of Common Pleas
KLATT, J.
{¶ 1} Defendant-appellant, Jonathan Wilburn, appeals from the July 28, 2017
decision of the Franklin County Court of Common Pleas revoking his community control
sanction and sentencing him to prison. For the following reasons, we affirm.
I. Factual and Procedural Background
{¶ 2} On August 13, 2013, a Franklin County Grand Jury indicted Wilburn on one
count of rape, in violation of R.C. 2907.02, and three counts of gross sexual imposition, in
violation of R.C. 2907.05. Wilburn initially entered a not guilty plea. An agreement was
reached with the state to amend counts two and three to endangering children, in violation
No. 17AP-602 2
of R.C. 2919.22. The parties also agreed to jointly recommend to the trial court that
Wilburn receive community control sanctions. Wilburn withdrew his not guilty plea and
entered a guilty plea to two counts of endangering children. The trial court accepted his
guilty plea, found him guilty, and delayed sentencing for the preparation of a presentence
investigation report.
{¶ 3} At the sentencing hearing, the trial court followed the joint recommendation,
placed Wilburn on community control for a period of three years, and entered a nolle
prosequi on counts one and four. As part of the community control sanctions, the trial court
ordered that Wilburn undergo a mental health examination and follow any recommended
treatment. It also ordered that he undergo a sex offender assessment and complete any
recommended treatment. The trial court informed Wilburn that if he violated the terms of
his community control that he would receive a prison term of 36 months on each count and
that the terms would be served consecutively for a total of 72 months.
{¶ 4} In March 2017, a probation officer filed a request to revoke Wilburn's
community control. The request alleged three violations of the terms and conditions of
Wilburn's community control: (1) unsuccessful termination from sex offender treatment at
"'STOP, Inc."; (2) admission of abusing prescribed Oxycodone to get high; and
(3) admission of consumption of alcohol. Wilburn stipulated to probable cause and
ultimately stipulated that he had violated the terms of his community control. The trial
court found there was probable cause and an actual violation of community control. The
trial court imposed a prison term of 30 months on each count and ordered that they be
served consecutively.
II. The Appeal
{¶ 5} Wilburn appealed his sentence, asserting the following assignments of error:
[I.] THE TRIAL COURT FAILED TO PROPERLY CONSIDER
THE ENTIRETY OF THE FACTORS ENUMERATED IN OHIO
REVISED CODE SECTION 2929.12(C) AND OHIO REVISED
CODE SECTION 2929.12(E) WHEN IMPOSING SENTENCE
ON THE DEFENDANT/APPELLANT.
[II.] THE TRIAL COURT FAILED TO ISSUE THE MINIMUM
SANCTIONS THAT IT DETERMINES LIKELY TO
ACCOMPLISH THE PURPOSES OF SENTENCING
WITHOUT IMPOSING AN UNNECESSARY BURDEN ON
STATE OR LOCAL GOVERNMENT RESOURCES.
No. 17AP-602 3
A. First Assignment of Error – Consideration of R.C. 2929.12 Factors
{¶ 6} In the first assignment of error, Wilburn argues that the trial court failed to
properly consider and apply the sentencing factors set forth in R.C. 2929.12(C) and (E). We
disagree.
{¶ 7} In sentencing a felony offender, the trial court must consider the overriding
purposes of sentencing, which are "to protect the public from future crime by the offender
and others and to punish the offender using the minimum sanctions that the court
determines accomplish those purposes without imposing an unnecessary burden on state
or local government." R.C. 2929.11(A). This requires consideration of "the need for
incapacitating the offender, deterring the offender and others from future crime,
rehabilitating the offender, and making restitution to the victim of the offense, the public,
or both." R.C. 2929.11(A). Further, pursuant to R.C. 2929.12(A), the court must consider
the factors set forth in R.C. 2929.12(B) and (C) relating to the seriousness of the offender's
conduct, as well as the factors set forth in R.C. 2929.12(D) and (E) relating to the likelihood
of recidivism, along with any other relevant factors. State v. Anderson, 10th Dist. No.
15AP-1082, 2016-Ohio-5946, ¶ 8, citing State v. Phipps, 10th Dist. No. 13AP-640, 2014-
Ohio-2905, ¶ 46, citing State v. Patrick, 10th Dist. No. 10AP-26, 2011-Ohio-1592, ¶ 24.
{¶ 8} On appeal, an appellate court may increase, reduce, or otherwise modify a
sentence only when it clearly and convincingly finds that the sentence is (1) contrary to law
and/or (2) unsupported by the record. State v. McGowan, 147 Ohio St. 3d 166, 2016-Ohio-
2971, ¶ 1, citing State v. Marcum, 146 Ohio St. 3d 516, 2016-Ohio-1002, ¶ 7. The Supreme
Court of Ohio has further held that "[c]lear and convincing evidence is that measure or
degree of proof which is more than a mere 'preponderance of the evidence,' but not to the
extent of such certainty as is required 'beyond a reasonable doubt' in criminal cases, and
which will produce in the mind of the trier of facts a firm belief or conviction as to the facts
sought to be established." Marcum at ¶ 22, quoting Cross v. Ledford, 161 Ohio St. 469,
(1954), paragraph three of the syllabus. Under Ohio law, a sentence is not clearly and
convincingly contrary to law where the record reflects that the trial court considered the
principles and purposes of R.C. 2929.11, weighed the seriousness and recidivism factors
listed in R.C. 2929.12, and imposed a sentence within the permissible statutory range. State
v. Gore, 10th Dist. No. 15AP-686, 2016-Ohio-7667, ¶ 8.
No. 17AP-602 4
{¶ 9} Here, Wilburn contends the trial court failed to properly apply the statutory
seriousness and recidivism factors contained in R.C. 2929.12 when imposing sentence. He
takes issue with the trial court's finding that he is no longer amenable to community
control. Wilburn argues that the trial court failed to consider R.C. 2929.12(C)(4), which
indicates that an offender's conduct can be considered less serious when there are
substantial grounds to mitigate the offender's conduct, although it does not constitute a
defense. In support of this contention, Wilburn points to a report from Dr. Bassman at the
"AWARE Program." According to Wilburn, Dr. Bassman opines that he is amenable to
community control and sex offender treatment.
{¶ 10} Wilburn also alleges that the trial court failed to consider the recidivism
factors in R.C. 2929.12(E)(2) through (5). These factors indicate that an offender is not
likely to commit future crimes if the offender has not previously been convicted or pled
guilty to a criminal offense, has led a law-abiding life for a significant period of time prior
to the offense, committed the offense under circumstances not likely to recur, and shows
genuine remorse. R.C. 2929.12(E). Wilburn notes that he expressed his remorse at the
revocation hearing and that Dr. Bassman's report indicated he had a low-moderate range
to reoffend.
{¶ 11} Wilburn's arguments largely rely on a report from Dr. Bassman. A copy of
the report was attached to Wilburn's appellate brief. App.R. 9(A)(1) provides that the
record on appeal, in all cases, constitutes "[t]he original papers and exhibits thereto filed in
the trial court, the transcript of proceedings, if any, including exhibits, and a certified copy
of the docket and journal entries prepared by the clerk of the trial court." A document that
is merely attached to an appellate brief is not part of the record and may not be considered
on appeal. Cashlink, LLC v. Mosin, Inc., 10th Dist. No. 12AP-395, 2012-Ohio-5906, ¶ 8,
citing Jefferson Golf & Country Club v. Leonard, 10th Dist. No. 11AP-434, 2011-Ohio-6829,
¶ 10. Although a copy of Dr. Bassman's report was purportedly provided to the trial judge,
the state, and the probation officer, it was not entered as an exhibit at the revocation
proceedings nor filed with the clerk of courts. Therefore, the report is not part of the record
in this matter, and we may not consider it on appeal.
{¶ 12} Regardless, the record in this case indicates that the trial court did consider
the sentencing factors. In the trial court's revocation entry, it noted that it "has considered
No. 17AP-602 5
the purposes and principles of sentencing set forth in R.C. 2929.11 and the factors set forth
in R.C. 2929.12." (Jgmt. Entry at 1.) That language in a judgment entry by itself belies a
defendant's claim that the trial court failed to consider the purposes and principles in
sentencing pursuant to R.C. 2929.11, and the R.C. 2929.12 factors regarding recidivism and
the seriousness of the offense. Anderson at ¶ 8-9, citing State v. Stubbs, 10th Dist. No.
13AP-810, 2014-Ohio-3696, ¶ 14, citing State v. Foster, 10th Dist. No. 12AP-69, 2012-Ohio-
4129, ¶ 15; State v. Small, 10th Dist. No. 09AP-1175, 2010-Ohio-5324, ¶ 16. Furthermore,
the record in Franklin C.P. No. 13CR-4286 contains "DEFENDANT'S STATEMENT OF
CLARIFICATION," filed with the court on July 25, 2017, in which appellant's counsel
outlined the reasons why Wilburn should be placed back on community control. We
presume the trial judge reviewed the memorandum as there is no indication, or even
allegation, that he did not. Finally, it is clear from the transcript that the trial court carefully
considered the sentence. The trial court specifically stated that it carefully reviewed the
arguments made by counsel and the documents filed in this case and that it "particularly
analyzed the report that was provided by the AWARE Program." (Tr. at 2.) It found that
its obligation to protect the public under the circumstances of this case was the overriding
factor. The trial court did not believe that Wilburn could make a sustained effort to comply
with the terms of his community control.
{¶ 13} This was not Wilburn's initial sentencing. During the plea hearing, the trial
court informed Wilburn that he would likely be placed into a sex offender program. It
further stated if Wilburn was unsuccessfully terminated from that program, the trial court
would likely resentence him to prison. Despite this warning, Wilburn failed to cooperate
with the "STOP, Inc.," program, admitted to molesting another child, and failed to comply
with other conditions of community control. After reviewing the record, we conclude that
Wilburn has failed to demonstrate that the trial court failed to properly consider the R.C.
2929.12 sentencing factors and that the sentence is clearly and convincingly contrary to law.
Accordingly, we overrule the first assignment of error.
B. Second Assignment of Error – More than the Minimum Sentence
{¶ 14} In the second assignment of error, Wilburn argues that the trial court failed
to impose the minimum sanctions that would accomplish the purposes of sentencing
without imposing an unnecessary burden on state or local government resources. Again,
No. 17AP-602 6
Wilburn relies on the report of Dr. Bassman and his need for sex offender treatment as well
as psychotherapy.
{¶ 15} R.C. 2929.11(A) provides:
A court that sentences an offender for a felony shall be guided
by the overriding purposes of felony sentencing. The overriding
purposes of felony sentencing are to protect the public from
future crime by the offender and others and to punish the
offender using the minimum sanctions that the court
determines accomplish those purposes without imposing an
unnecessary burden on state or local government resources. To
achieve those purposes, the sentencing court shall consider the
need for incapacitating the offender, deterring the offender and
others from future crime, rehabilitating the offender, and
making restitution to the victim of the offense, the public, or
both.
{¶ 16} Although resource conservation is a sentencing consideration, it must be
balanced against the need to protect the public. A sentencing court is not required to elevate
consideration of resource burdens over the seriousness and recidivism factors of R.C.
2929.12. State v. Reeves, 10th Dist. No. 14AP-856, 2015-Ohio-3251, ¶ 9. "Where the
interests of public protection and punishment are well served by a prison sentence, the
claim is difficult to make that the prison sentence imposes an unnecessary burden on
government resources." State v. Bowshier, 2d Dist. No. 08-CA-58, 2009-Ohio-3429, ¶ 14.
In this case, the trial court stated that its obligation to protect the public under the
circumstances of this case was the overriding factor. Additionally, we have already
determined that the trial court considered the necessary factors when imposing Wilburn's
sentence. This necessarily includes the consideration of the burden on state and local
government resources. Accordingly, the second assignment of error is overruled.
{¶ 17} For the foregoing reasons, Wilburn's assignments of error are overruled, and
the judgment of the Franklin County Court of Common Pleas is affirmed.
Judgment affirmed.
BROWN, P.J., and BRUNNER, J., concur.
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